225 Rule 801
HEARSAY
ARTICLE VIII. HEARSAY
Rule
801.
802.
803.
803(2).
803(3).
803(4).
803(5).
803(6).
803(7).
803(8).
803(9).
803(10).
803(11).
803(12).
803(13).
803(14).
803(15).
803(16).
803(17).
803(18).
803(19).
803(20).
803(21).
803(22).
803(23).
803(24).
803(25).
803.1.
803.1(2).
803.1(3).
804.
804(b).
804(b)(2).
804(b)(3).
804(b)(4).
804(b)(5).
804(b)(6).
805.
806.
807.
Definitions That Apply to This Article.
The Rule Against Hearsay.
Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness.
Excited Utterance.
Then-Existing Mental, Emotional, or Physical Condition.
Statement Made for Medical Diagnosis or Treatment.
Recorded Recollection (Not Adopted).
Records of a Regularly Conducted Activity.
Absence of a Record of a Regularly Conducted Activity (Not Adopted).
Public Records (Not Adopted).
Public Records of Vital Statistics (Not Adopted).
Absence of a Public Record (Not Adopted).
Records of Religious Organizations Concerning Personal or Family History.
Certificates of Marriage, Baptism, and Similar Ceremonies.
Family Records.
Records of Documents That Affect an Interest in Property.
Statements in Documents That Affect an Interest in Property.
Statements in Ancient Documents.
Market Reports and Similar Commercial Publications.
Statements in Learned Treatises, Periodicals, or Pamphlets (Not Adopted).
Reputation Concerning Personal or Family History.
Reputation Concerning Boundaries or General History.
Reputation Concerning Character.
Judgment of a Previous Conviction (Not Adopted).
Judgments Involving Personal, Family, or General History or a Boundary (Not
Adopted).
Other Exceptions (Not Adopted).
An Opposing Party’s Statement.
Exceptions to the Rule Against Hearsay—Testimony of Declarant Necessary.
Prior Statement of Identification.
Recorded Recollection.
Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as
a Witness.
The Exceptions.
Statement Under Belief of Imminent Death.
Statement Against Interest.
Statement of Personal or Family History.
Other exceptions (Not Adopted).
Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability.
Hearsay Within Hearsay.
Attacking and Supporting the Declarant’s Credibility.
Residual Exception (Not Adopted).
Source
The provisions of this Introductory Comment amended December 17, 2004, effective January 31,
2005, 35 Pa.B. 8; rescinded January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (308921) to (308922).
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Rule 801. Definitions That Apply to This Article.
(a) Statement. ‘‘Statement’’ means a person’s oral assertion, written assertion,
or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. ‘‘Declarant’’ means the person who made the statement.
(c) Hearsay. ‘‘Hearsay’’ means a statement that
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in
the statement.
Comment
Pa.R.E. 801(a), (b) and (c) are identical to F.R.E. 801(a), (b) and (c). The matters set out in F.R.E.
801(d)(1) (A Declarant-Witness’s Prior Statement) are covered in Pa.R.E. 803.1(1) and (2) and
Pa.R.E. 613(c). The matters set out in F.R.E. 801(d)(2) (An Opposing Party’s Statement) are covered
in Pa.R.E. 803(25).
Communications that are not assertions are not hearsay. These would include questions, greetings,
expressions of gratitude, exclamations, offers, instructions, warnings, etc.
Pa.R.E. 801(c), which defines hearsay, is consistent with Pennsylvania law, although the Pennsylvania cases have usually defined hearsay as an ‘‘out-of-court statement offered to prove the truth of
the matter asserted’’ instead of the definition used Pa.R.E. 801(c). See Heddings v. Steele, 514 Pa. 569,
526 A.2d 349 (1987). The adoption of the language of the Federal Rule is not intended to change
existing law.
A statement is hearsay only if it is offered to prove the truth of the matter asserted in the statement. There are many situations in which evidence of a statement is offered for a purpose other than
to prove the truth of the matter asserted.
Sometimes a statement has direct legal significance, whether or not it is true. For example, one or
more statements may constitute an offer, an acceptance, a promise, a guarantee, a notice, a representation, a misrepresentation, defamation, perjury, compliance with a contractual or statutory obligation,
etc.
More often, a statement, whether or not it is true, constitutes circumstantial evidence from which
the trier of fact may infer, alone or in combination with other evidence, the existence or non-existence
of a fact in issue. For example, a declarant’s statement may imply his or her particular state of mind,
or it may imply that a particular state of mind ensued in the recipient. Evidence of a statement, particularly if it is proven untrue by other evidence, may imply the existence of a conspiracy, or fraud.
Evidence of a statement made by a witness, if inconsistent with the witness’s testimony, may imply
that the witness is an unreliable historian. Conversely, evidence of a statement made by a witness that
is consistent with the witness’s testimony may imply the opposite. See Pa.R.E. 613(c).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March
29, 2001, effective April 1, 2001; rescinded and replaced January 17, 2013, effective March 18,
2013.
Committee Explanatory Reports:
Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s
Order at 31 Pa.B. 1995 (April 14, 2001).
Final Report explaining the January 17, 2013 rescission and replacement published with the
Court’s Order at 43 Pa.B. 651 (February 2, 2013).
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225 Rule 802
HEARSAY
Source
The provisions of this Rule 801 amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993;
rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (308922) to (308923) and (276587).
Rule 802. The Rule Against Hearsay.
Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute.
Comment
Pa.R.E. 802 differs from F.R.E. 802 in that it refers to other rules prescribed by the Pennsylvania
Supreme Court, and to statutes in general, rather than federal statutes.
Often, hearsay will be admissible under an exception provided by these rules. The organization of
the Pennsylvania Rules of Evidence generally follows the organization of the Federal Rules of Evidence, but the Pennsylvania Rules’ organization of the exceptions to the hearsay rule is somewhat
different than the federal organization. There are three rules which contain the exceptions: Pa.R.E. 803
Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant is Available as a Witness, Pa.R.E. 803.1 Exceptions to the Rule Against Hearsay—Testimony of Declarant Necessary, and
Pa.R.E. 804 Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness.
On occasion, hearsay may be admitted pursuant to another rule promulgated by the Pennsylvania
Supreme Court. For example, in civil cases, all or part of a deposition may be admitted pursuant to
Pa.R.C.P. No. 4020, or a video deposition of an expert witness may be admitted pursuant to Pa.R.C.P.
No. 4017.1(g). In preliminary hearings in criminal cases, the court may consider hearsay evidence
pursuant to Pa.R.Crim.P. 542(E) and 1003(E). In criminal trials, Pa.R.Crim.P. 574 provides a procedure for the admission of forensic laboratory reports supported by a certification.
Also, hearsay may be admitted pursuant to a state statute. Examples include:
1. A public record may be admitted pursuant to 42 Pa.C.S. § 6104. See Comment to Pa.R.E.
803(8) (Not Adopted).
2. A record of vital statistics may be admitted pursuant to 35 P. S. § 450.810. See Comment to
Pa.R.E. 803(9) (Not Adopted).
3. In a civil case, a deposition of a licensed physician may be admitted pursuant to 42 Pa.C.S.
§ 5936.
4. In a criminal case, a deposition of a witness may be admitted pursuant to 42 Pa.C.S. § 5919.
5. In a criminal or civil case, an out-of-court statement of a witness 12 years of age or younger,
describing certain kinds of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5985.1.
6. In a dependency hearing, an out-of-court statement of a witness under 16 years of age, describing certain types of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5986.
7. In a prosecution for speeding under the Pennsylvania Vehicle Code, a certificate of accuracy of
an electronic speed timing device (radar) from a calibration and testing station appointed by the
Pennsylvania Department of Motor Vehicles may be admitted pursuant to 75 Pa.C.S. § 3368(d).
On rare occasion, hearsay may be admitted pursuant to a federal statute. For example, when a person brings a civil action, in either federal or state court, against a common carrier to enforce an order
of the Interstate Commerce Commission requiring the payment of damages, the findings and order of
the Commission may be introduced as evidence of the facts stated in them. 49 U.S.C. § 11704(d)(1).
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RULES OF EVIDENCE
Hearsay Exceptions and the Right of Confrontation
of a Defendant in a Criminal Case
The exceptions to the hearsay rule in Rules 803, 803.1, and 804 and the exceptions provided by
other rules or by statute are applicable both in civil and criminal cases. In a criminal case, however,
hearsay that is offered against a defendant under an exception from the hearsay rule provided by these
rules or by another rule or statute may sometimes be excluded because its admission would violate
the defendant’s right ‘‘to be confronted with the witnesses against him’’ under the Sixth Amendment
of the United States Constitution, or ‘‘to be confronted with the witnesses against him’’ under Article
I, § 9 of the Pennsylvania Constitution.
The relationship between the hearsay rule and the Confrontation Clause in the Sixth Amendment
was explained by the United States Supreme Court in California v. Green, 399 U.S. 149, 155-56
(1970):
While it may readily be conceded that hearsay rules and the Confrontation Clause are generally
designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules
of hearsay and their exceptions as they existed historically at common law. Our decisions have
never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. . . .
Given the similarity of the values protected, however, the modification of a State’s hearsay rules
to create new exceptions for the admission of evidence against a defendant, will often raise
questions of compatibility with the defendant’s constitutional right to confrontation.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court, overruling its prior opinion in
Ohio v. Roberts, 448 U.S. 56 (1980), interpreted the Confrontation Clause to prohibit the introduction
of ‘‘testimonial’’ hearsay from an unavailable witness against a defendant in a criminal case unless
the defendant had an opportunity to confront and cross-examine the declarant, regardless of its exception from the hearsay rule, except, perhaps, if the hearsay qualifies as a dying declaration (Pa.R.E.
804(b)(2)).
In short, when hearsay is offered against a defendant in a criminal case, the defendant may interpose three separate objections: (1) admission of the evidence would violate the hearsay rule, (2)
admission of the evidence would violate defendant’s right to confront the witnesses against him under
the Sixth Amendment of the United States Constitution, and (3) admission of the evidence would violate defendant’s right ‘‘to be confronted with the witnesses against him’’ under Article I, § 9 of the
Pennsylvania Constitution.
Pennsylvania Rule of Criminal Procedure 574 provides a mechanism for the admission of a forensic laboratory report supported by a certification. This Rule provides a defendant an opportunity to
exercise the right of confrontation and to object to the report on hearsay grounds. Following pre-trial
notice by the prosecution, and in the absence of a demand by defendant for declarant’s live testimony,
the Rule permits the admission of a properly certified forensic laboratory report at trial and the
accompanying certification at trial. See Pa.R.Crim.P. 574.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March
23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately;
Comment revised March 29, 2001, effective April 1, 2001; rescinded and replaced January 17,
2013, effective March 18, 2013.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical revisions to the Comment published with the
Court’s Order at 29 Pa.B. 1714 (April 3, 1999).
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225 Rule 803
HEARSAY
Final Report explaining the March 10, 2000 changes updating the seventh paragraph of the Comment published with the Court’s Order at 30 Pa.B. 1641 (March 25, 2000).
Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s
Order at 31 Pa.B. 1995 (April 14, 2001).
Final Report explaining the January 17, 2013 rescission and replacement published with the
Court’s Order at 43 Pa.B. 651 (February 2, 2013).
Final Report explaining the February 19, 2014 revision of the Comment published with the Court’s
Order at 44 Pa.B. 1309 (March 8, 2014).
Source
The provisions of this Rule 802 amended March 23, 1999, effective immediately, 29 Pa.B. 1712;
amended March 24, 2000, effective March 25, 2000, 30 Pa.B. 1639; amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993; rescinded and replaced January 17, 2013, effective in sixty days,
43 Pa.B. 620; amended February 19, 2014, effective April 1, 2014, 44 Pa.B. 1309. Immediately preceding text appears at serial pages (365901) to (365903).
Rule 803 . Exceptions to the Rule Against Hearsay—Regardless of
Whether the Declarant Is Available as a Witness.
The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an
event or condition, made while or immediately after the declarant perceived it.
Comment
This rule is identical to F.R.E. 803(1).
For this exception to apply, declarant need not be excited or otherwise emotionally affected by the
event or condition perceived. The trustworthiness of the statement arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated
prevarication or loss of memory.
Source
The provisions of this Rule 803 amended March 23, 1999, effective immediately, 29 Pa.B. 1712;
amended March 10, 2000, effective immediately, 30 Pa.B. 1639; amended May 16, 2001, effective
July 1, 2001, 31 Pa.B. 2788; amended November 2, 2001, effective January 1, 2002, 31 Pa.B. 6381;
rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (276588) to (276589), (285605) to (285606), (364515) to (364516),
(245789) to (245790), (280387) to (280388) and (285609) to (285610).
Rule 803(2). Excited Utterance.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
Comment
This rule is identical to F.R.E. 803(2).
This exception has a more narrow base than the exception for a present sense impression, because
it requires an event or condition that is startling. However, it is broader in scope because an excited
utterance (1) need not describe or explain the startling event or condition; it need only relate to it,
and (2) need not be made contemporaneously with, or immediately after, the startling event. It is sufficient if the stress of excitement created by the startling event or condition persists as a substantial
factor in provoking the utterance.
There is no set time interval following a startling event or condition after which an utterance relating to it will be ineligible for exception to the hearsay rule as an excited utterance. In Commonwealth
v. Gore, 262 Pa. Super. 540, 547, 396 A.2d 1302, 1305 (1978), the court explained:
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225 Rule 803(3)
RULES OF EVIDENCE
The declaration need not be strictly contemporaneous with the existing cause, nor is there a
definite and fixed time limit. . . . Rather, each case must be judged on its own facts, and a lapse
of time of several hours has not negated the characterization of a statement as an ‘‘excited utterance.’’ . . . The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes
remain in abeyance.
Source
The provisions of this Rule 803(2) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 803(3). Then-Existing Mental, Emotional, or Physical Condition.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement
of the declarant’s then-existing state of mind (such as motive, intent or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or
bodily health), but not including a statement of memory or belief to prove the
fact remembered or believed unless it relates to the validity or terms of the
declarant’s will.
Comment
This rule is identical to F.R.E. 803(3).
Source
The provisions of this Rule 803(3) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 803(4). Statement Made for Medical Diagnosis or Treatment.
(4)
Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for—and is reasonably pertinent to—medical treatment or
diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external
source thereof, insofar as reasonably pertinent to treatment, or diagnosis in
contemplation of treatment.
Comment
Pa.R.E. 803(4) differs from F.R.E. 803(4) in that it permits admission of statements made for purposes of medical diagnosis only if they are made in contemplation of treatment. Statements made to
persons retained solely for the purpose of litigation are not admissible under this rule. The rationale
for admitting statements for purposes of treatment is that the declarant has a very strong motivation
to speak truthfully. This rationale is not applicable to statements made for purposes of litigation.
Pa.R.E. 803(4) is consistent with Pennsylvania law. See Commonwealth v. Smith, 545 Pa. 487, 681
A.2d 1288 (1996).
An expert medical witness may base an opinion on the declarant’s statements of the kind discussed
in this rule, even though the statements were not made for purposes of treatment, if the statements
comply with Pa.R.E. 703. Such statements may be disclosed as provided in Pa.R.E. 705, but are not
substantive evidence.
This rule is not limited to statements made to physicians. Statements to a nurse have been held to
be admissible. See Smith, supra. Statements as to causation may be admissible, but statements as to
fault or identification of the person inflicting harm have been held to be inadmissible. See Smith,
supra.
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225 Rule 803(5)
HEARSAY
Source
The provisions of this Rule 803(4) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 803(5). Recorded Recollection (Not Adopted).
(5)
Recorded Recollection (Not Adopted)
Comment
Recorded recollection is dealt with in Pa.R.E. 803.1(3). It is an exception to the hearsay rule in
which the testimony of the declarant is necessary.
Source
The provisions of this Rule 803(5) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 803(6). Records of a Regularly Conducted Activity.
(6) Records of a Regularly Conducted Activity. A record (which includes a
memorandum, report, or data compilation in any form) of an act, event or condition if,
(A) the record was made at or near the time by—or from information
transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity
of a ‘‘business’’, which term includes business, institution, association,
profession, occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor other circumstances indicate
a lack of trustworthiness.
Comment
Pa.R.E. 803(6) differs from F.R.E. 803(6). One difference is that Pa.R.E. 803(6) defines the term
‘‘record.’’ In the Federal Rules this definition appears at F.R.E. 101(b). Another difference is that
Pa.R.E. 803(6) applies to records of an act, event or condition, but does not include opinions and
diagnoses. This is consistent with prior Pennsylvania case law. See Williams v. McClain, 513 Pa. 300,
520 A.2d 1374 (1987); Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975). A third difference is that Pa.R.E. 803(6) allows the court to exclude business records that would otherwise
qualify for exception to the hearsay rule if neither the ‘‘source of information nor other circumstances
indicate lack of trustworthiness.’’ The Federal Rule allows the court to do so only if neither ‘‘the
source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.’’
If offered against a defendant in a criminal case, an entry in a record may be excluded if its admission would violate the defendant’s constitutional right to confront the witnesses against him or her.
See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
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RULES OF EVIDENCE
Source
The provisions of this Rule 803(6) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 803(7). Absence of a Record of a Regularly Conducted Activity (Not
Adopted).
(7) Absence of a Record of a Regularly Conducted Activity (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 803(7) which provides:
Evidence that a matter is not included in a record described in paragraph (6) if:
(A)
the evidence is admitted to prove that the matter did not occur or exist; and
(B)
a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of
trustworthiness.
Principles of logic and internal consistency have led Pennsylvania to reject this rule. The absence
of an entry in a record is not hearsay, as defined in Pa.R.E. 801(c). Hence, it appears irrational to
except it to the hearsay rule.
On analysis, absence of an entry in a business record is circumstantial evidence—it tends to prove
something by implication, not assertion. Its admissibility is governed by principles of relevance, not
hearsay. See Pa.R.E. 401, et seq.
Pennsylvania law is in accord with the object of F.R.E. 803(7), i.e., to allow evidence of the
absence of a record of an act, event, or condition to be introduced to prove the nonoccurrence or nonexistence thereof, if the matter was one which would ordinarily be recorded. See Klein v. F.W. Woolworth Co., 309 Pa. 320, 163 A. 532 (1932) (absence of person’s name in personnel records admissible to prove that he was not an employee). See also Stack v. Wapner, 244 Pa. Super. 278, 368 A.2d
292 (1976).
Source
The provisions of this Rule 803(7) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 803(8). Public Records (Not Adopted).
(8)
Public Records (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 803(8). An exception to the hearsay rule for public records is
provided by 42 Pa.C.S. § 6104 which provides:
(a) General rule.—A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof of official records) shall be admissible as evidence that
the governmental action or inaction disclosed therein was in fact taken or omitted.
(b) Existence of facts.—A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to official duty or
would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances
indicate lack of trustworthiness.
Subsection (b) of the statute is limited to ‘‘facts.’’ It does not include opinions or diagnoses. This
is consistent with Pa.R.E. 803(6), and Pennsylvania case law. See Comment to Pa.R.E. 803(6).
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HEARSAY
Source
The provisions of this Rule 803(8) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 803(9). Public Records of Vital Statistics (Not Adopted).
(9)
Public Records of Vital Statistics (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 803(9). Records of vital statistics are also records of a regularly conducted activity and may be excepted to the hearsay rule by Pa.R.E. 803(6). Records of vital
statistics are public records and they may be excepted to the hearsay rule by 42 Pa.C.S. § 6104 (text
quoted in Comment to Pa.R.E. 803(8)).
The Vital Statistics Law of 1953, 35 P. S. § 450.101 et seq., provides for registration of births,
deaths, fetal deaths, and marriages, with the State Department of Health. The records of the Department, and duly certified copies thereof, are excepted to the hearsay rule by 35 P. S. § 450.810 which
provides:
Any record or duly certified copy of a record or part thereof which is (1) filed with the department
in accordance with the provisions of this act and the regulations of the Advisory Health Board and
which (2) is not a ‘‘delayed’’ record filed under section seven hundred two of this act or a record
‘‘corrected’’ under section seven hundred three of this act shall constitute prima facie evidence of its
contents, except that in any proceeding in which paternity is controverted and which affects the interests of an alleged father or his successors in interest no record or part thereof shall constitute prima
facie evidence of paternity unless the alleged father is the husband of the mother of the child.
Source
The provisions of this Rule 803(9) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 803(10). Absence of a Public Record (Not Adopted).
(10) Absence of a Public Record (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 803(10) for the same reasons that it did not adopt F.R.E.
803(7). See Comment to Pa.R.E. 803(7).
42 Pa.C.S. § 6104(b), provides for admissibility of evidence of the absence of an entry in a public
record to prove the nonexistence of a fact:
(b) Existence of facts.—A copy of a record authenticated as provided in section 6103 disclosing the . . . nonexistence of facts which . . . would have been . . . recorded had the facts existed
shall be admissible as evidence of the . . . nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.
Pennsylvania also has a complementary statute, 42 Pa.C.S. § 5328, entitled ‘‘Proof of Official
Records,’’ which provides, in pertinent part:
(d) Lack of record.—A written statement that after diligent search no record or entry of a
specified tenor is found to exist in the records designated by the statement, authenticated as provided in this section in the case of a domestic record, or complying with the requirements of this
section for a summary in the case of a record in a foreign country, is admissible as evidence that
the records contain no such record or entry.
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RULES OF EVIDENCE
Source
The provisions of this Rule 803(10) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(11). Records of Religious Organizations Concerning Personal
or Family History.
(11) Records of Religious Organizations Concerning Personal or Family
History. A statement of birth, legitimacy, ancestry, marriage, divorce, death,
relationship by blood or marriage, or similar facts of personal or family history,
contained in a regularly kept record of a religious organization.
Comment
This rule is identical to F.R.E. 803(11).
Source
The provisions of this Rule 803(11) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(12). Certificates of Marriage, Baptism, and Similar Ceremonies.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or
by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony
or administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a
reasonable time after it.
Comment
This rule is identical to F.R.E. 803(12).
Source
The provisions of this Rule 803(12) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(13). Family Records.
(13) Family Records. A statement of fact about personal or family history
contained in a family record, such as a Bible, genealogy, chart, engraving on a
ring, inscription on a portrait, or engraving on an urn or burial marker.
Comment
This rule is identical to F.R.E. 803(13).
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Source
The provisions of this Rule 803(13) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(14). Records of Documents That Affect an Interest in Property.
(14) Records of Documents That Affect an Interest in Property. The record
of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded
document, along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
Comment
This rule is identical to F.R.E. 803(14).
Source
The provisions of this Rule 803(14) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(15). Statements in Documents That Affect an Interest in Property.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document, other than a will, that purports to establish or
affect an interest in property if the matter stated was relevant to the document’s
purpose—unless later dealings with the property are inconsistent with the truth
of the statement or the purport of the document.
Comment
Pa.R.E. 803(15) differs from F.R.E. 803(15) in that Pennsylvania does not include a statement
made in a will.
Pennsylvania’s variation from the federal rule with respect to wills is consistent with case law. See
In Re Estate of Kostik, 514 Pa. 591, 526 A.2d 746 (1987).
Source
The provisions of this Rule 803(15) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(16). Statements in Ancient Documents.
(16) Statements in Ancient Documents. A statement in a document that is at
least 30 years old and whose authenticity is established.
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Comment
Pa.R.E. 803(16) differs from F.R.E. 803(16) in that Pennsylvania adheres to the common law view
that a document must be at least 30 years old to qualify as an ancient document. The Federal Rule
reduces the age to 20 years.
Pa.R.E. 803(16) is consistent with Pennsylvania law. See Louden v. Apollo Gas Co., 273 Pa. Super.
549, 417 A.2d 1185 (1980); Commonwealth ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A.191 (1923).
Source
The provisions of this Rule 803(16) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(17). Market Reports and Similar Commercial Publications.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the
public or by persons in particular occupations.
Comment
This rule is identical to F.R.E. 803(17).
Source
The provisions of this Rule 803(17) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(18). Statements in Learned Treatises, Periodicals, or Pamphlets
(Not Adopted).
(18) Statements in Learned Treatises, Periodicals, or Pamphlets (Not
Adopted)
Comment
Pennsylvania has not adopted F.R.E. 803(18). Pennsylvania does not recognize an exception to the
hearsay rule for learned treatises. See Majdic v. Cincinnati Machine Co., 370 Pa. Super. 611, 537 A.2d
334 (1988).
Regarding the permissible uses of learned treatises under Pennsylvania law, see Aldridge v.
Edmunds, 561 Pa. 323, 750 A.2d 292 (Pa. 2000).
Source
The provisions of this Rule 803(18) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(19). Reputation Concerning Personal or Family History.
(19) Reputation Concerning Personal or Family History. A reputation
among a person’s family by blood, adoption, or marriage—or among a person’s associates or in the community—concerning the person’s birth, adoption,
legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption,
or marriage, or similar facts of personal or family history.
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Comment
This rule is identical to F.R.E. 803(19). It changed prior Pennsylvania case law by expanding the
sources from which the reputation may be drawn to include (1) a person’s associates; and (2) the
community. Prior Pennsylvania case law, none of which is recent, limited the source to the person’s
family. See Picken’s Estate, 163 Pa. 14, 29 A. 875 (1894); American Life Ins. and Trust Co. v.
Rosenagle, 77 Pa. 507 (1875).
Source
The provisions of this Rule 803(19) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(20). Reputation Concerning Boundaries or General History.
(20) Reputation Concerning Boundaries or General History. A reputation in
a community—arising before the controversy—concerning boundaries of land
in the community or customs that affect the land, or concerning general historical events important to that community, state or nation.
Comment
This rule is identical to F.R.E. 803(20).
Source
The provisions of this Rule 803(20) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(21). Reputation Concerning Character.
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
Comment
This rule is identical to F.R.E. 803(21).
Source
The provisions of this Rule 803(21) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(22). Judgment of a Previous Conviction (Not Adopted).
(22) Judgment of a Previous Conviction (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 803(22).
With respect to facts essential to sustain a judgment of criminal conviction, there are four basic
approaches that a court can take:
1. The judgment of conviction is conclusive, i.e., estops the party convicted from contesting any
fact essential to sustain the conviction.
2. The judgment of conviction is admissible as evidence of any fact essential to sustain the conviction, only if offered against the party convicted.
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3. The judgment of conviction is admissible as evidence of any fact essential to sustain the conviction when offered against any party (this is the federal rule for felonies, except that the Government cannot offer someone else’s conviction against the defendant in a criminal case, other than for
purposes of impeachment).
4. The judgment of conviction is neither conclusive nor admissible as evidence to prove a fact
essential to sustain the conviction (common law rule).
For felonies and other major crimes, Pennsylvania takes approach number one. In subsequent litigation, the convicted party is estopped from denying or contesting any fact essential to sustain the
conviction. Once a party is estopped from contesting a fact, no evidence need be introduced by an
adverse party to prove it. See Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965); In re Estate of Bartolovich, 420 Pa. Super. 419, 616 A.2d 1043 (1992) (judgment of conviction conclusive under Slayer’s Act, 20 Pa.C.S. §§ 8801—8815).
For minor offenses, Pennsylvania takes approach number four; it applies the common law rule.
Evidence of a conviction is inadmissible to prove a fact necessary to sustain the conviction. See
Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966).
A plea of guilty to a crime is excepted to the hearsay rule as an admission of all facts essential to
sustain a conviction, but only when offered against the pleader by a party-opponent. See Pa.R.E.
803(25); see also Pa.R.E. 410. A plea of guilty may also qualify as an exception to the hearsay rule
as a statement against interest, if the declarant is unavailable to testify at trial. See Pa.R.E. 804(b)(3).
Source
The provisions of this Rule 803(22) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(23). Judgments Involving Personal, Family, or General History
or a Boundary (Not Adopted).
(23) Judgments Involving Personal, Family, or General History or a Boundary (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 803(23).
Source
The provisions of this Rule 803(23) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803(24). Other Exceptions (Not Adopted).
(24) Other Exceptions (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 803(24) (now F.R.E. 807).
Source
The provisions of this Rule 803(24) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
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Rule 803(25). An Opposing Party’s Statement.
(25) An Opposing Party’s Statement. The statement is offered against an
opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance
of the conspiracy.
The statement may be considered but does not by itself establish the declarant’s
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).
Comment
Pa.R.E. 803(25) differs from F.R.E. 801(d)(2), in that the word ‘‘must’’ in the last paragraph has
been replaced with the word ‘‘may.’’
The Federal Rules treat these statements as ‘‘not hearsay’’ and places them in F.R.E 801(d)(2). The
traditional view was that these statements were hearsay, but admissible as exceptions to the hearsay
rule. The Pennsylvania Rules of Evidence follow the traditional view and place these statements in
Pa.R.E. 803(25), as exceptions to the hearsay rule—regardless of the availability of the declarant. This
differing placement is not intended to have substantive effect.
The statements in this exception were traditionally, and in prior versions of both the Federal Rules
of Evidence and the Pennsylvania Rules of Evidence, called admissions, although in many cases the
statements were not admissions as that term is employed in common usage. The new phrase used in
the federal rules—an opposing party’s statement—more accurately describes these statements and is
adopted here.
The personal knowledge rule (Pa.R.E. 602) is not applicable to an opposing party’s statement. See
Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March
23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately;
Comment revised May 16, 2001, effective July 1, 2001; amended November 2, 2001, effective
January 1, 2002; rescinded and replaced January 17, 2013, effective March 18, 2013.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical revisions to the Comment for paragraph 25
published with the Court’s Order at 29 Pa.B. 1714 (April 3, 1999).
Final Report explaining the March 10, 2000 revision of the Comment for paragraph 25 published
with the Court’s Order at 30 Pa.B. 1641 (March 25, 2000).
Final Report explaining the May 16, 2001 revision of the Comment for paragraph 18 published
with the Court’s Order at 31 Pa.B. 2789 (June 2, 2001).
Final Report explaining the November 2, 2001, amendments to paragraph 6 published with the
Court’s Order at 31 Pa.B. 6384 (November 24, 2001).
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Final Report explaining the January 17, 2013 rescission and replacement published with the
Court’s Order at 43 Pa.B. 651 (February 2, 2013).
Source
The provisions of this Rule 803(25) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803.1. Exceptions to the Rule Against Hearsay—Testimony of
Declarant Necessary.
The following statements are not excluded by the rule against hearsay if the
declarant testifies and is subject to cross-examination about the prior statement:
(1) Prior Inconsistent Statement of Declarant-Witness. A prior statement
by a declarant-witness that is inconsistent with the declarant-witness’s testimony and:
(A) was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic, audiotaped, or videotaped recording of an oral statement.
Comment
The Federal Rules treat statements corresponding to Pa.R.E. 803.1(1) and (2) as ‘‘not hearsay’’ and
places them in F.R.E. 801(d)(1)(A) and (C). Pennsylvania follows the traditional approach that treats
these statements as exceptions to the hearsay rule if the declarant testifies at the trial.
Pa.R.E. 803.1(1) is consistent with prior Pennsylvania case law. See Commonwealth v. Brady, 510
Pa. 123, 507 A.2d 66 (1986) (seminal case that overruled close to two centuries of decisional law in
Pennsylvania and held that the recorded statement of a witness to a murder, inconsistent with her testimony at trial, was properly admitted as substantive evidence, excepted to the hearsay rule); Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). In Commonwealth v. Wilson, 550 Pa. 518, 707
A.2d 1114 (1998), the Supreme Court held that to be admissible under this rule an oral statement must
be a verbatim contemporaneous recording in electronic, audiotaped, or videotaped form.
An inconsistent statement of a witness that does not qualify as an exception to the hearsay rule may
still be introduced to impeach the credibility of the witness. See Pa.R.E. 613.
Source
The provisions of this Rule 803.1 amended March 10, 2000, effective immediately, 30 Pa.B. 1639;
rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (285610) and (265707).
Rule 803.1(2). Prior Statement of Identification.
(2) Prior Statement of Identification by Declarant-Witness. A prior statement by a declarant-witness identifying a person or thing, made after perceiving the person or thing, provided that the declarant-witness testifies to the
making of the prior statement.
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Comment
Pennsylvania treats a statement meeting the requirements of Pa.R.E. 803.1(2) as an exception to
the hearsay rule. F.R.E. 801(d)(1)(C) provides that such a statement is not hearsay. This differing
organization is consistent with Pennsylvania law.
Pa.R.E. 803.1(2) differs from F.R.E. 801(d)(1)(C) in several respects. It requires the witness to testify to making the identification. This is consistent with Pennsylvania law. See Commonwealth v. Ly,
528 Pa. 523, 599 A.2d 613 (1991). The Pennsylvania rule includes identification of a thing, in addition to a person.
Source
The provisions of this Rule 803.1(2) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 803.1(3). Recorded Recollection.
(3) Recorded Recollection of Declarant-Witness. A memorandum or record
made or adopted by a declarant-witness that:
(A) is on a matter the declarant-witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the declarant-witness when the matter
was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or her knowledge at the time when made.
If admitted, the memorandum or record may be read into evidence and received
as an exhibit, but may be shown to the jury only in exceptional circumstances or
when offered by an adverse party.
Comment
Pa.R.E. 803.1(3) is similar to F.R.E. 803(5), but differs in the following ways:
1. Pennsylvania treats a statement meeting the requirements of Pa.R.E. 803.1(3) as an exception to
the hearsay rule in which the testimony of the declarant is necessary. F.R.E. 803(5) treats this as an
exception regardless of the availability of the declarant. This differing organization is consistent with
Pennsylvania law.
2. Pa.R.E. 803.1(3)(C) makes clear that, to qualify a recorded recollection as an exception to the
hearsay rule, the witness must testify that the memorandum or record correctly reflects the knowledge
that the witness once had. In other words, the witness must vouch for the reliability of the record. The
Federal Rule is ambiguous on this point and the applicable federal cases are conflicting.
3. Pa.R.E. 803.1(3) allows the memorandum or record to be received as an exhibit, and grants the
trial judge discretion to show it to the jury in exceptional circumstances, even when not offered by an
adverse party.
Pa.R.E. 803.1(3) is consistent with Pennsylvania law. See Commonwealth v. Cargo, 498 Pa. 5, 444
A.2d 639 (1982).
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 10, 2000,
effective July 1, 2000; rescinded and replaced January 17, 2013, effective March 18, 2013.
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Committee Explanatory Reports:
Final Report explaining the amendment to subsection (1) and the updates to the Comment to subsection (1) published with the Court’s Order at 30 Pa.B. 1646 (March 25, 2000).
Final Report explaining the January 17, 2013 rescission and replacement published with the
Court’s Order at 43 Pa.B. 651 (February 2, 2013).
Source
The provisions of this Rule 803.1(3) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant
is Unavailable as a Witness.
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s
statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or
a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not
been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under
Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured
or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
Comment
This rule is identical to F.R.E. 804(a).
Source
The provisions of this Rule are amended March 10, 2000, effective immediately, 30 Pa.B. 1639;
amended December 17, 2004, effective January 31, 2005, 35 Pa.B. 8; rescinded and replaced January
17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages
(265707) to (265708) and (308925) to (308928).
Rule 804(b). The Exceptions.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition,
whether given during the current proceeding or a different one; and
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(B) is now offered against a party who had—or, in a civil case, whose
predecessor in interest had—an opportunity and similar motive to develop
it by direct, cross-, or redirect examination.
Comment
Pa.R.E. 804(b)(1) is identical to F.R.E. 804(b)(1).
In criminal cases the Supreme Court has held that former testimony is admissible against the
defendant only if the defendant had a ‘‘full and fair’’ opportunity to examine the witness. See Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992).
Depositions
Depositions are the most common form of former testimony that is introduced at a modern trial.
Their use is provided for not only by Pa.R.E. 804(b)(1), but also by statute and rules of procedure
promulgated by the Pennsylvania Supreme Court.
The Judicial Code provides for the use of depositions in criminal cases. 42 Pa.C.S. § 5919 provides:
Depositions in criminal matters. The testimony of witnesses taken in accordance with section
5325 (relating to when and how a deposition may be taken outside this Commonwealth) may be
read in evidence upon the trial of any criminal matter unless it shall appear at the trial that the
witness whose deposition has been taken is in attendance, or has been or can be served with a
subpoena to testify, or his attendance otherwise procured, in which case the deposition shall not
be admissible.
42 Pa.C.S. § 5325 sets forth the procedure for taking depositions, by either prosecution or defendant, outside Pennsylvania.
In civil cases, the introduction of depositions, or parts thereof, at trial is provided for by Pa.R.C.P.
No. 4020(a)(3) and (5).
A video deposition of a medical witness, or any expert witness, other than a party to the case, may
be introduced in evidence at trial, regardless of the witness’s availability, pursuant to Pa.R.C.P. No.
4017.1(g).
42 Pa.C.S. § 5936 provides that the testimony of a licensed physician taken by deposition in
accordance with the Pennsylvania Rules of Civil Procedure is admissible in a civil case. There is no
requirement that the physician testify as an expert witness.
Source
The provisions of this Rule 804(b) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.
Rule 804(b)(2). Statement Under Belief of Imminent Death.
(2) Statement Under Belief of Imminent Death. A statement that the
declarant, while believing the declarant’s death to be imminent, made about its
cause or circumstances.
Comment
Pa.R.E. 804(b)(2) differs from F.R.E. 804(b)(2) in that the Federal Rule is applicable in criminal
cases only if the defendant is charged with homicide. The Pennsylvania Rule is applicable in all civil
and criminal cases, subject to the defendant’s right to confrontation in criminal cases.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court interpreted the Confrontation
Cause in the Sixth Amendment of the United States Constitution to prohibit the introduction of ‘‘tes-
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RULES OF EVIDENCE
timonial’’ hearsay from an unavailable witness against a defendant in a criminal case unless the
defendant had an opportunity to confront and cross-examine the declarant, regardless of its exception
from the hearsay rule. However, in footnote 6, the Supreme Court said that there may be an exception, sui generis, for those dying declarations that are testimonial.
Source
The provisions of this Rule 804(b)(2) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 804(b)(3). Statement Against Interest.
(3)
Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it was so
contrary to the declarant’s proprietary or pecuniary interest or had so great
a tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate
its trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
Comment
This rule is identical to F.R.E. 804(b)(3).
Source
The provisions of this Rule 804(b)(3) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 804(b)(4). Statement of Personal or Family History.
(4) Statement of Personal or Family History. A statement made before the
controversy arose about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage,
divorce, relationship by blood, adoption or marriage, or similar facts of
personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if
the declarant was related to the person by blood, adoption, or marriage or
was so intimately associated with the person’s family that the declarant’s
information is likely to be accurate.
Comment
Pa.R.E. 804(b)(4) differs from F.R.E. 804(b)(4) by requiring that the statement be made before the
controversy arose. See In re McClain’s Estate, 481 Pa. 435, 392 A.2d 1371 (1978). This requirement
is not imposed by the Federal Rule.
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Source
The provisions of this Rule 804(b)(4) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 804(b)(5). Other exceptions (Not Adopted).
(5)
Other exceptions (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 804(b)(5) (now F.R.E. 807).
Source
The provisions of this Rule 804(b)(5) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 804(b)(6). Statement Offered Against a Party That Wrongfully
Caused the Declarant’s Unavailability.
(6) Statement Offered Against a Party That Wrongfully Caused the
Declarant’s Unavailability. A statement offered against a party that wrongfully
caused—or acquiesced in wrongfully causing—the declarant’s unavailability as
a witness, and did so intending that result.
Comment
This rule is identical to F.R.E. 804(b)(6).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March
10, 2000, effective immediately; rescinded and replaced January 17, 2013, effective March 18,
2013.
Committee Explanatory Reports:
Final Report explaining the March 10, 2000 revision of the Comment to paragraph (b)(4) published
with the Court’s Order at 30 Pa.B. 1641 (March 25, 2000).
Final Report explaining the January 17, 2013 rescission and replacement published with the
Court’s Order at 43 Pa.B. 651 (February 2, 2013).
Source
The provisions of this Rule 804(b)(6) adopted January 17, 2013, effective in sixty days, 43 Pa.B.
620.
Rule 805. Hearsay Within Hearsay.
Hearsay within hearsay is not excluded by the rule against hearsay if each part
of the combined statements conforms with an exception to the rule.
Comment
This rule is identical to F.R.E. 805.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced
January 17, 2013, effective March 18, 2013.
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Committee Explanatory Reports:
Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s
Order at 43 Pa.B. 651 (February 2, 2013).
Source
The provisions of this Rule 805 rescinded and replaced January 17, 2013, effective in sixty days,
43 Pa.B. 620. Immediately preceding text appears at serial page (308928).
Rule 806. Attacking and Supporting the Declarant’s Credibility.
When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be
admissible for those purposes if the declarant had testified as a witness. The court
may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain
or deny it. If the party against whom the statement was admitted calls the
declarant as a witness, the party may examine the declarant on the statement as
if on cross-examination.
Comment
Pa.R.E. 806 differs from F.R.E. 806 in that Pa.R.E. 806 makes no reference to Rule 801(d)(2). The
subject matter of F.R.E. 801(d)(2) (an opposing party’s statement) is covered by Pa.R.E. 803(25). The
change is not substantive. Pa.R.E. 806 is consistent with Pennsylvania law. See Commonwealth v.
Davis, 363 Pa. Super. 562, 526 A.2d 1205 (1987).
The requirement that a witness be given an opportunity to explain or deny the making of an inconsistent statement provided by Pa.R.E. 613(b)(2) is not applicable when the prior inconsistent statement
is offered to impeach a statement admitted under an exception to the hearsay rule. In most cases, the
declarant will not be on the stand at the time when the hearsay statement is offered and for that reason the requirement of Pa.R.E. 613(b)(2) is not appropriate.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced
January 17, 2013, effective March 18, 2013.
Committee Explanatory Reports:
Final Report explaining the January 17, 2013 amendments published with the Court’s Order at 43
Pa.B. 651 (February 2, 2013).
Source
The provisions of this Rule 806 rescinded and replaced January 17, 2013, effective in sixty days,
43 Pa.B. 620. Immediately preceding text appears at serial pages (808928) to (308929).
Rule 807. Residual Exception (Not Adopted).
Comment
Pennsylvania has not adopted F.R.E. 807.
Official Note:
2013.
Comment rescinded and replaced January 17, 2013, effective March 18,
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Copyright 娀 2013 Commonwealth of Pennsylvania
225 Rule 807
HEARSAY
Committee Explanatory Reports:
Final Report explaining the January 17, 2013 amendments published with the Court’s Order at 43
Pa.B. 651 (February 2, 2013).
Source
The provisions of this Rule 807 rescinded and replaced January 17, 2013, effective in sixty days,
43 Pa.B. 620. Immediately preceding text appears at serial page (308929).
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Copyright 娀 2013 Commonwealth of Pennsylvania